Burt v. PHH Mortgage Corporation et al
MEMORANDUM & ORDER granting 56 Motion to Dismiss for Failure to State a Claim; granting 57 Motion to Dismiss for Failure to State a Claim; granting 76 Motion to Dismiss for Failure to State a Claim; terminating 80 Motion to Dismiss; te rminating 81 Motion to Dismiss; terminating 82 Motion to Dismiss; For the foregoing reasons, Ricciardi's motion to dismiss (Docket Entry 56) is GRANTED, and Plaintiff's claims against Ricciardi are DISMISSED WITH PREJUDICE. Shapiro and PHH's motions to dismiss (Docket Entries 57, 76) are GRANTED, and Plaintiff's claims against Shapiro and PHH are DISMISSED WITHOUT PREJUDICE. Defendants' letter motions to dismiss (Docket Entries 80, 81, 82) are TERMINATED AS MOOT . Plaintiff is GRANTED leave to file a Second Amended Complaint to add allegations to support her claims under sections 1692c and 1692d against Shapiro and PHH within thirty (30) days of the date of this Memorandum and Order. Leave to amend is DENIED as to the section 1692g claim and the claim against Ricciardi. The Clerk of the Court is directed to mail a copy of this Order to the pro se Plaintiff. So Ordered by Judge Joanna Seybert on 1/25/2017. C/M; C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
CHARISE L. BURT,
MEMORANDUM & ORDER
PHH MORTGAGE CORPORATION, SHAPIRO,
DICARO & BARAK, LLC, MARK RICCIARDI
and JOHN DOE 1-3,
Charise L. Burt, pro se
24 Conlon Road
Roosevelt, New York 11575
& Barak, LLC:
John Doe 1-3:
John Fincey, Esq.
112 West 34th Street, Suite 1403
New York, New York 10120
John A. DiCaro, Esq.
Shapiro, DiCaro & Barak, LLC
175 Milecrossing Blvd.
Rochester, New York 14624
James N. Joseph, Esq.
Joseph & Terracciano, LLP
2 Roosevelt Avenue, Suite 200
Syosset, New York 11791
SEYBERT, District Judge:
This dispute relates to the foreclosure of a residential
(“Plaintiff”) alleges that Defendants PHH Mortgage Corporation
(“PHH”), Shapiro, DiCaro & Barak, LLC (“Shapiro”), Mark Ricciardi
“Defendants”) violated the Fair Debt Collection Practices Act
(Am. Compl., Docket Entry 53, ¶ 1.)
before the Court are Riccardi, Shapiro, and PHH’s motions to
dismiss for failure to state a claim.
(Ricciardi Mot., Docket
Entry 56; Shapiro Mot., Docket Entry 57; PHH Mot., Docket Entry
Plaintiff is also GRANTED leave to file a Second Amended Complaint
as set forth below.
Plaintiff executed a mortgage note on October 12, 2004,
which was secured by a residence at 24 Conlon Road in Roosevelt,
As explained in more detail infra, the Court will treat the
Amended Complaint at Docket Entry 53 as the operative complaint
in this action. The following facts are taken from the Amended
Complaint (Am. Compl.) and are presumed to be true for the
purposes of this Memorandum and Order. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 572, 127 S. Ct. 1955, 1975, 167 L. Ed. 2d
929 (2007) (“[A] judge ruling on a defendant’s motion to dismiss
a complaint must accept as true all of the factual allegations
contained in the complaint.” (internal quotation marks and
(Am. Compl. ¶ 10; Shapiro Ex. B, Docket Entry 61, at
The mortgagee was Merrill Lynch Credit.
(Am. Compl. ¶ 10.)
Plaintiff was found to be in default as of February 1, 2011.
Compl. ¶ 11.)
Thereafter, Plaintiff went to the public recorder’s
office and discovered that the note was assigned to PHH on May 11,
(Am. Compl. ¶¶ 12-13; Pl.’s Ex. A, Docket Entry 53, at 9-
On August 31, 2011, Defendant Shapiro, on behalf of PHH,
commenced a foreclosure action in New York State Supreme Court.
(Shapiro Ex. B, at 2.)
On October 9, 2014, Plaintiff served a Notice of Dispute
on Defendants pursuant to 15 U.S.C. § 1692g, requiring that they
(Am. Compl. ¶ 16; Pl.’s Ex. B, Docket Entry 53, at 11-
She never received verification of the debt.
Plaintiff further alleges that she did not give prior
consent for Defendants to contact her and that Defendants acquired
certain data from a third party and “used such data in abusive
conduct” toward her.
(Am. Compl. ¶¶ 14-15.)
She maintains that
Plaintiff alleges that her discovery of the assignment
qualifies as an “initial communication” under the FDCPA.
Compl. ¶ 13.)
The Court will use the pagination assigned by the Electronic
Case Filing System when referring to the exhibits.
harass[ed] and invade[d] [P]laintiff’s privacy.”
(Am. Compl. ¶
Additionally, Plaintiff alleges that she suffered headaches,
nausea, embarrassment, and insomnia as a result of Defendants’
conduct and seeks the following relief: (1) a declaratory judgment
damages, (3) $250,000 in actual damages, (4) $500,000 in punitive
damages, (5) costs, fees and expenses, and (6) an injunction
preventing Defendants from further debt collection activity.
Compl. ¶ 22, and at 5.)
alleging that Defendants violated the FDCPA and New York General
Business Law (“NYGBL”) § 349.
(Compl., Docket Entry 1, ¶ 1.)
Defendants subsequently moved to dismiss the Complaint for failure
to state a claim.
(Shapiro Mot., Docket Entry 11; Ricciardi Mot.,
Docket Entry 31; PHH Mot., Docket Entry 34.) Thereafter, Plaintiff
filed a motion to amend her Complaint.
(Docket Entry 39.)
October 15, 2015, PHH filed a motion to consolidate this matter
with a related action that PHH had previously removed to this
(Docket Entry 42.)
During a conference on January 8, 2016, the Court granted
PHH’s motion to consolidate and consolidated this action with Burt
v. PHH Mortgage Corp., 15-CV-5274.
(Minute Order, Docket Entry
In addition, the Court granted Plaintiff’s motion to amend
and directed her to file an Amended Complaint containing the
allegations in both actions.
Defendants’ motions to dismiss were
terminated pending the filing of the Amended Complaint.
Plaintiff filed her Amended Complaint on March 7,
(See Am. Compl.)
She appears to allege that Defendants
violated several provisions of the FDCPA, including 15 U.S.C.
§§ 1692g, 1692c, and 1692d.4
(Am. Compl. ¶¶ 16, 18.)
Shapiro and PHH filed their motions to dismiss on March 21, 2016,
March 31, 2016 and April 6, 2016, respectively.
Entries 56, 57, 76.)
On April 27, 2016, Plaintiff filed a document captioned
“Plaintiff’s Second Amended Claim for Damages.”
Thereafter, PHH filed a letter motion to dismiss and argued
that because Plaintiff did not oppose its motion to dismiss, the
motion should be granted on that basis alone.
PHH further argued
that Plaintiff improperly filed a Second Amended Complaint without
Although Plaintiff does not refer to section 1692d
specifically, she alleges that Defendants “engaged in abusive
behavior.” (Am. Compl. ¶ 18.) When a plaintiff is proceeding
pro se, the Court “is required to read the complaint liberally
and interpret it as raising the strongest argument it suggests.”
Brooks v. N.Y.C. DOC Comm’r, No. 14-CV-6283, 2016 WL 4530456, at
*2 (E.D.N.Y. Aug. 29, 2016). As such, the Court construes this
allegation as interposing a claim under section 1692d of the
FDCPA. Section 1692d prohibits “a debt collector . . . [from]
engag[ing] in any conduct the natural consequence of which is to
harass, oppress or abuse any person in connection with the
collection of a debt.” 15 U.S.C. 1692d.
leave of the Court.
(PHH Ltr. Mot., Docket Entry 80, at 1.)
Ricciardi and Shapiro joined PHH’s motion.
Entries 81, 82.)
(Ltr. Mots., Docket
While Plaintiff’s “Second Amended Claim for
Damages” is formatted like a complaint, the Court construes this
document as Plaintiff’s opposition to the motions to dismiss, as
it appears to respond to Defendants’ arguments and it was filed on
the last day for Plaintiff to file an opposition brief.
To survive a motion to dismiss, a complaint must plead
“enough facts to state a claim to relief that is plausible on its
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct.
1955, 1974 (2007). A claim is plausible “when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173
allegations in the Amended Complaint as true, this tenet is
“inapplicable to legal conclusions.”
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”
Id. (citation omitted).
Ultimately, the Court’s plausibility determination is a “contextspecific task that requires the reviewing court to draw on its
judicial experience and common sense.”
Id. at 679, 129 S. Ct. at
A complaint filed by a pro se litigant is to be construed
liberally and “however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200, 167 L.
Ed. 2d 1081 (2007) (internal quotation marks and citation omitted).
See also Hiller v. Farmington Police Dep’t, No. 12-CV-1139, 2015
WL 4619624, at *7 (D. Conn. July 31, 2015) (noting that the
dismissal of a pro se complaint pursuant to Rule 12(b)(6) is not
appropriate “unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle
him to relief”) (internal quotation marks and citations omitted).
Nevertheless, a pro se complaint must state a plausible claim for
relief and comply with the minimal pleading standards set forth in
Federal Rule of Civil Procedure 8. Hiller, 2015 WL 4619624, at *7.
In deciding a motion to dismiss, the Court is generally
confined to “the allegations contained within the four corners of
Pani v. Empire Blue Cross Blue Shield, 152 F.3d
67, 71 (2d Cir. 1998).
However, the Court may consider “any
written instrument attached to [the complaint] as an exhibit,
materials incorporated in it by reference, and documents that,
Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004)
(internal quotation marks and citation omitted); see also Chambers
v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (observing
that a document is “integral” if the complaint “relies heavily
upon its terms and effect”) (internal quotation marks and citation
Further, the Court is permitted to take judicial notice
of facts contained in publicly available documents, including, in
this case, the filings in a State Court foreclosure proceeding.
See Person v. White, 09-CV-3920, 2010 WL 2723210, at *3 (E.D.N.Y.
July 2, 2010) (quoting Commer v. McEntee, 00-CV-7913, 2006 WL
3262494, at *23 (S.D.N.Y. Nov. 9, 2006) (“[T]he Court may take
of . . . matters
. . . .”).
The Fair Debt Collection Practices Act5
The FDCPA “establishes certain rights for consumers
whose debts are placed in the hands of professional debt collectors
DeSantis v. Computer Credit, Inc., 269 F.3d 159,
161 (2d Cir. 2001); see also 15 U.S.C. § 1692(e) (describing that
the purpose of the statute is “to eliminate abusive debt collection
To assert a claim under the FDCPA, Plaintiff must
satisfy three threshold requirements: (1) she was a “consumer”;
Plaintiff’s claim under NYGBL § 349 is deemed ABANDONED because
she did not include it in her Amended Complaint. See Ping Tou
Bian v. Taylor, 23 F. App’x 75, 77 (2d Cir. 2001) (“It is wellestablished that an amended complaint ordinarily supersedes the
original and renders it of no legal effect.”) (internal
quotation marks omitted).
(2) Defendants were “debt collector[s]”; and (3) Defendants’ act
or omission violated the FDCPA.
See Polanco v. NCO Portfolio
Mgmt., Inc., 132 F. Supp. 3d 567, 578 (S.D.N.Y. 2015) (internal
quotation marks and citation omitted).
Plaintiff appears to allege that Defendants’ conduct
violated sections 1692g, 1692c and 1692d of the FDCPA.
communication with a consumer in connection with the collection of
any debt, a debt collector shall . . . send the consumer a written
notice,” known as a validation notice.
15 U.S.C. § 1692g(a).
notice is required to contain certain information, including “the
amount of the debt,” “the name of the creditor to whom the debt is
owed,” and a series of statements outlining the dispute procedures.
15 U.S.C. § 1692g(a)(1)-(5); see also Douyon v. N.Y. Med. Health
Care, P.C., 894 F. Supp. 2d 245, 255 (E.D.N.Y. 2012), amended on
Notably, the provision states that “unless the consumer, within
thirty days after receipt of the notice, disputes the validity of
the debt, or any portion thereof, the debt will be assumed to be
valid by the debt collector.”
If the consumer
disputes the debt in writing within the thirty-day period, the
judgment, or the identity of the original creditor is provided to
Section 1692c sets forth specific guidelines regarding
when and how debt collectors can contact consumers.
consumer consents, debt collectors are prohibited from contacting
represented by an attorney, contacting third parties about a
15 U.S.C. §§ 1692c(a), 1692c(b).
If a consumer
notifies the debt collector in writing that she refuses to pay the
debt, or that she wishes communication regarding the debt to cease,
the debt collector is required to cease communication except in
certain narrow circumstances.
Finally, section 1692d prohibits debt collectors from
engaging “in any conduct the natural consequence of which is to
harass, oppress, or abuse any person in connection with the
collection of a debt.”
15 U.S.C. § 1692d.
Ricciardi’s Motion to Dismiss
Ricciardi argues that he is not a debt collector as
defined by the FDCPA.6
(Ricciardi Br., Docket Entry 56-1, at 9.)
Subject to certain exceptions not relevant here, the statute
Plaintiff did not respond to this argument in her opposition.
instrumentality of interstate commerce or the mails in any business
the principal purpose of which is the collection of any debts, or
indirectly, debts owed or due or asserted to be owed or due
15 U.S.C. § 1692a(6).
Ricciardi is a New York State
Court Referee who was appointed by the state court judge presiding
over the foreclosure action to “ascertain and compute the amount
due, determine whether the premises may be sold in parcels, conduct
(Ricciardi Br. at 9.)
He contends that he was appointed “after
the commencement of the [s]tate foreclosure action and after
Plaintiff defaulted in answering the foreclosure complaint and
liability for the debt was determined by the Court.”
Br. at 7.)
Ricciardi does not “regularly collect[ ] or attempt[ ]
to collect . . . debts” nor was he engaged in “any business the
principal purpose of which [was] the collection of debts.”
Rather, he was appointed by the state court judge to
liability was determined. (Ricciardi Br. at 7; Order of Reference,
Ricciardi Ex. D, Docket Entry 56-6, at 3.)
is not a debt collector subject to liability under the FDCPA, and
his motion to dismiss is GRANTED.
Shapiro and PHH’s Motions to Dismiss
Shapiro and PHH argue that the Amended Complaint fails
to state a claim under the FDCPA.
(Shapiro Br., Docket Entry 58,
at 5-6; PHH Br., Docket Entry 77, at 5-6.)
argue that Plaintiff’s section 1692g claim fails as a matter of
(Shapiro Br. at 8-9; PHH Br. at 6-9.)
The Court agrees that the Amended Complaint fails to
state a claim under section 1692g.
Plaintiff alleges that she
served a Notice of Dispute on October 9, 2014 which “require[d]
verification from the creditor.”
(Am. Compl. ¶ 16; Pl.’s Ex. B.)
However, the thirty-day period prescribed by section 1692g had
already expired because Plaintiff was served with the validation
notice on September 8, 2011 (the “Validation Notice”).
Serv., Shapiro Ex. C, Docket Entry 62; Validation Notice, Shapiro
Ex. D, Docket Entry 63.) As a result, Shapiro and PHH were entitled
to assume that the debt was valid.
See Munroe v. Specialized Loan
Servicing LLC, 14-CV-1883, 2016 WL 1248818, at *7 (E.D.N.Y. Mar.
28, 2016) (“Because Plaintiff failed to dispute the validity of
period, Defendants were entitled to assume the debt was valid, and
Plaintiff’s section 1692g claim fails as a matter of law.”).
She refers to section 1692c, (Am. Compl. ¶ 16), and
alleges conduct that may violate section 1692d, (Am. Compl. ¶ 18),
Specifically, she fails to allege that Shapiro or PHH communicated
with her in a manner prohibited by section 1692c, or that they
continued to contact her after she requested that they cease
See § 1692c(a), (c).
Although Plaintiff alleges
that Shapiro and PHH engaged in “abusive behavior, trespass[ed] in
[P]laintiff’s private commercial affairs as well as harass[ed] and
invad[ed] [P]laintiff’s privacy,” (Am. Compl. ¶ 18), she fails to
set forth the “abusive behavior” they engaged in or when it
liberally, see Erickson, 551 U.S. at 94, 127 S. Ct. at 2200, 167
L. Ed. 2d 1081, the Court finds that Plaintiff’s allegations are
insufficient to state a plausible FDCPA claim.
Shapiro and PHH’s motions to dismiss the remaining claims are
Leave to Amend
The Second Circuit has held that “[w]hen a motion to
dismiss is granted, the usual practice is to grant leave to amend
Hayden v. Cty. of Nassau, 180 F.3d 42, 53 (2d
Cir. 1999), overruled on other grounds, Gonzaga v. Doe, 536 U.S.
273, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002).
See also FED. R. CIV.
P. 15(a)(2) (“The court should freely give leave [to amend] when
justice so requires.”).
“However, a district court has the
discretion to deny leave to amend where there is no indication
from a liberal reading of the complaint that a valid claim might
Perri v. Bloomberg, No. 11-CV-2646, 2012 WL 3307013,
at *4 (E.D.N.Y. Aug. 13, 2012).
In light of Plaintiff’s pro se status, the Court will
allow Plaintiff to amend her complaint.
See Brooks v. N.Y.C. DOC
Comm’r, No. 14-CV-6283, 2016 WL 4530456, at *7 (E.D.N.Y. Aug. 29,
2016) (“Certainly the court should not dismiss without granting
leave to amend at least once when a liberal reading of the [pro
se] complaint gives any indication that a valid claim might be
stated.”) (alteration in original).
The Court recognizes that PHH and Shapiro contend that
Plaintiff’s claims are barred by claim preclusion and the statute
of limitations, or alternatively, should be dismissed because
(Shapiro Br. at 4-7; PHH Br. at 3-5.)
Court declines to determine whether dismissal is appropriate on
these grounds at this juncture in the absence of specific factual
Therefore, the Court GRANTS Plaintiff leave to amend her
Amended Complaint to add specific allegations to support her claims
under sections 1692c and 1692d against Shapiro and PHH.
amend is DENIED as to Plaintiff’s section 1692g claim and her claim
against Ricciardi. Plaintiff is advised that if she fails to amend
her Amended Complaint within the time period set by the Court, the
case will be dismissed with prejudice.
For the foregoing reasons, Ricciardi’s motion to dismiss
(Docket Entry 56) is GRANTED, and Plaintiff’s claims against
Ricciardi are DISMISSED WITH PREJUDICE.
Shapiro and PHH’s motions
to dismiss (Docket Entries 57, 76) are GRANTED, and Plaintiff’s
claims against Shapiro and PHH are DISMISSED WITHOUT PREJUDICE.
Defendants’ letter motions to dismiss (Docket Entries 80, 81, 82)
are TERMINATED AS MOOT.
[BOTTOM OF PAGE INTENTIONALLY LEFT BLANK]
Plaintiff is GRANTED leave to file a Second Amended
Complaint to add allegations to support her claims under sections
1692c and 1692d against Shapiro and PHH within thirty (30) days of
the date of this Memorandum and Order.
Leave to amend is DENIED
as to the section 1692g claim and the claim against Ricciardi.
The Clerk of the Court is directed to mail a copy of this Order to
the pro se Plaintiff.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
25 , 2017
Central Islip, New York
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